WUTI WELLINGTON WAA & ANOR v R [2019] NZCA 536

WUTI WELLINGTON WAA & ANOR v R [2019] NZCA 536 [5 November 2019]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT1985.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA587/2018[2019] NZCA 536BETWEEN WUTI WELLINGTON WAAApplicantAND THE QUEENRespondentCA86/2019BETWEEN ALLAN MILLERApplicantAND THE QUEENRespondentHearing: 3 October 2019Court: Kos P, Miller and Goddard JJCounsel: G H Vear for Applicant WaaD J Allan for Applicant MillerC A Brook for RespondentJudgment: 5 November 2019 at 3.30 pmJUDGMENT OF THE COURTThe applications for leave to appeal were correctly accepted for filing.The Registrar is to take steps to set them down for hearing.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This judgment answers the questions whether this Court has jurisdiction toentertain applications for leave to appeal a conviction entered in March 1990 anda sentence passed in February 1991 respectively, and if so, what is the source of thatjurisdiction.[2] In both cases the applicants sought leave to appeal but their applications weredismissed under what has been described as an ex parte process in which no hearingwas held. The ex parte process appears materially indistinguishable from thatcondemned by the Privy Council in R v Taito.1 The Crown says, however, that Taitois distinguishable because the appeals in that case had been brought as of right.Until 15 August 1991 criminal appeals were by leave only.2 In the present casesapplications for leave to appeal were dismissed prior to that date.[3] For reasons which we can state quite shortly, we hold that the Court mayentertain the leave applications in the exercise of its inherent jurisdiction to revisitits decision in exceptional circumstances to avoid a substantial miscarriage of justice.3The applicants' cases[4] The applications are unrelated. We adopt Ms Brook's concise summary of theircircumstances.[5] On 19 March 1990, following a jury trial, Mr Waa was convicted of the murderof Rex Bell at the Northcote Motel on 19 December 1988. Mr Waa sought leave toappeal out of time on 25 October 1990. Leave was determined on the papers, andrefused on 27 June 1991.[6] On 8 February 1991, Mr Miller pleaded guilty to the rape of an Americantourist. That offence was committed within a few months of his release from prison,1 R v Taito [2003] UKPC 15, [2003] 3 NZLR 577.2 Crimes Act 1961, s 383(1).3 R v Smith [2003] 3 NZLR 617 (CA); see also Lyon v R [2019] NZCA 311.where he had been serving a sentence of imprisonment for two earlier rapes. He wassentenced to preventive detention on 26 February 1991.4 An application for leave toappeal out of time was filed on 30 May 1991. Leave was determined on the papers,and refused on 25 July 1991.[7] The applications for leave were not strictly dealt with ex parte — underthe process adopted by the Court both parties were permitted to file writtensubmissions. But "ex parte" was the name that the Court itself gave to the processunder which appeals, and applications for leave, were determined on the papers,usually after legal aid had been declined for perceived want of merit.[8] Mr Waa now wishes to advance an appeal against conviction based onthe unreliability of an informant whose evidence the Crown relied upon at trial.Apart from the informant's claim that Mr Waa confessed to him in prison, the Crowncase rested on shoeprints found at the scene. It is said that some of the witness's claimswere demonstrably implausible and events since the trial have confirmed the witnesslacks credibility. Mr Waa also contends that his trial ought to have been severed fromthat of a co-accused, who had made statements implicating him.[9] Mr Miller's intended sentence appeal rests on the proposition that he ought nothave been sentenced to preventive detention. Sentencing procedure at the time did notrequire psychiatric reports although one was provided to the sentencing Judge. In hisfirst application for leave he relied on an additional psychiatric report. It is not knownwhether this Court considered the reports, but it is not in doubt that the leaveapplication was dismissed without a hearing.The legislation at the time contemplated an oral hearing[10] Ms Brook observed that in Taito the Privy Council emphasised that the appealsin that case lay as of right. Further, the right to an appeal in s 25(h) of the New ZealandBill of Rights Act 1990 applied to those appeals, while that Act had not come intoforce when Mr Waa made his application for leave. (It was in force when Mr Millermade his application.) We accept those points. However, the dispositive consideration4 R v Miller HC Christchurch S. No 10/91, 26 February 1991.is that the legislation and court rules in force at the time contemplated thatan application for leave to appeal would receive an oral hearing, or such hearing mightbe held at the applicant's election. It is common ground that the applicants in this casewere denied such a hearing through the ex parte process.[11] The relevant provisions begin with s 383 of the Crimes Act 1961, whichprovided that any person convicted on indictment might appeal their conviction as ofright on any ground which involved a question of law alone, and in any case involvinga question of fact alone, or a question of mixed fact and law, might appeal with leaveof the Court of Appeal. Sentence appeals were only by leave of the Court, unlessthe sentence was fixed by law. We note in passing that Mr Waa's appeal is said to raisequestions of law, but it also raises questions of fact and so would require leave.[12] Section 388 of the Crimes Act dealt with the time for appealing:388 Time for appealing(1) Where a person convicted desires to appeal to the Court of Appealagainst his conviction or sentence, or to obtain the leave of that Courtso to appeal, or where the Solicitor-General desires to obtain the leaveof the Court of Appeal to appeal against the sentence passed onthe conviction of any person on indictment, he shall give notice ofappeal or notice of his application for leave to appeal in such manneras may be directed by rules of Court within 10 days after the date ofconviction or (if the convicted person is not sentenced on the date ofconviction) at any time after the conviction, but not later than 10 daysafter the date of sentence. The rules shall enable any convicted personto present his case and his argument in writing instead of by oralargument if he so desires. Any case or argument so presented shall beconsidered by the Court.(2) The time within which notice of appeal or notice of application forleave to appeal may be given may be extended at any time bythe Court of Appeal.(Emphasis added)[13] Under s 390 it was the duty of the Solicitor-General to appear for the Crownon every appeal against conviction or sentence. As Ms Brook emphasised,the legislation did not specify that the Solicitor-General must also appear on leaveapplications.[14] Section 392(1) provided that the Registrar must take all necessary steps forobtaining a hearing of any appeal or application for leave to appeal:392 Duties of Registrar with respect to notices of appeal, etc.—(1) The Registrar of the Court of Appeal shall take all necessary steps forobtaining a hearing of any appeal or application for leave to appealof which notice is given to him, and shall obtain and lay beforethe Court in proper form all documents, exhibits, and other thingsconnected with the proceedings in the Court whose decision isappealed against which appear necessary for the proper determinationof the appeal or application.(Emphasis added)[15] The Registrar might refer to the Court any appeal purported to be on a questionof law alone that appeared to the Registrar to lack substance, and the Court mightdismiss it summarily without calling on anyone, if satisfied that the appeal wasfrivolous or vexatious and could be determined without adjourning it for a fullhearing.5 There was otherwise no provision for summary determination.[16] Certain powers could be exercised by a Judge alone. They included the powerto give leave to appeal. However, should a Judge refuse to exercise such a power inthe appellant's favour the appellant had the right to have the application determinedby the Court:393 Certain powers exercisable by Judge of Court of AppealThe powers of the Court of Appeal to give leave to appeal againstconviction or sentence, to extend the time within which notice ofappeal or of an application for leave to appeal may be given, to allowthe appellant to be present at any proceedings in cases where he is notentitled to be present without leave, to issue a warrant for the detentionof the accused pending a new trial, and to grant bail to an appellantmay be exercised by any Judge of the Court of Appeal in the samemanner as they may be exercised by the Court, and subject to the sameprovisions; but if the Judge refuses an application on the part ofthe appellant to exercise any such power in his favour, the appellantshall be entitled to have the application determined by the Court ofAppeal.5 Crimes Act, s 392(2).[17] Under rr 42 and 43 of the Criminal Appeal Rules 1946 the Registrar had togive notice of an adverse decision by a single Judge and notify the applicant of theright "to have his application determined by the Court of Appeal as duly constitutedfor the hearing and determining of appeals".[18] It appears that in this case Mr Miller's application was dismissed by threejudges following refusal of legal aid, but it is not in dispute that they employedthe ex parte procedure under which they did not sit as a division and no hearing washeld. It is not known what happened in Mr Waa's case. If a single Judge decided hisapplication there is no evidence that he was given notice of his right to havethe decision reviewed by the Court.[19] The Criminal Appeal Rules also contained rules dealing with the hearing ofappeals. The relevant rules were as followed:23 Every appeal and application for leave to appeal not summarilydetermined under subsection (2) of section 15 of the Act shall be heard at suchtime and place as the Court may direct, whether of its own motion, or onthe application of the appellant, or on the application of counsel defendingthe appeal.24 Notice of the time and place of hearingNotice of the time and place fixed for the hearing of an appeal or applicationfor leave to appeal shall be given by the Registrar to the Solicitor-Generaland to the accused person or convicted person.26 The decision on every appeal and application for leave to appeal shallbe pronounced in open Court.27 On the determination of an appeal or of any matter incidental theretothe Registrar shall, if the appellant is in custody and has not been present atsuch determination, give notice thereof to the appellant in one of the formsnumbered 3 and 4 in the Schedule hereto, and shall send a copy thereof tothe Gaoler of the prison where the appellant is in custody, and another copy tothe Registrar of the Supreme Court at the place where the appellant wasconvicted, and if leave is thereby granted to the appellant to be present at anysubsequent proceedings, shall send another copy to the Controller-General ofPrisons.(Emphasis added)[20] Section 395(1) of the Crimes Act provided that the applicant had a right to berepresented on the hearing of an application for leave to appeal:395 Right of appellant to be represented—(l) On the hearing of an appeal or on an application for leave to appealor on any proceedings preliminary or incidental to an appeal, theappellant, except as provided in subsection (2) of section 392 of thisAct, shall be entitled to be represented by counsel, but if the appellantis in custody he shall not be entitled to be present, except where rulesof Court provide that he shall have the right to be present, or wherethe Court of Appeal gives him leave to be present.(Emphasis added)[21] In our opinion the legislation and rules together contemplated that inthe ordinary way an application for leave to appeal would be the subject of an oralhearing before a duly constituted Court of Appeal. The Act authorised alternativeprocesses — summary dismissal or decision by a single Judge — in certain cases, butthose powers were not exercised in the cases before us. This is, we think, quite plain.That being so, we do not consider that anything can be read into the fact thatthe Solicitor-General was not expressly required to appear on leave applications. It isnot necessary for us to consider whether the procedure for determining legal aidapplications was correct under the legislation in force at the time.6[22] Some support for this conclusion is found in the Crimes (Criminal Appeals)Amendment Act 2001 (the 2001 Act), which was enacted in response to Taito. Itestablished a remedial procedure under which decisions that had been made ex partemight be reheard on application. That procedure applied to both appeals andapplications for leave to appeal.76 The Offenders Legal Aid Act 1954. A different regime was in place for the Taito appeals, underthe Legal Services Act 1991, but nothing turns on that.7 Section 13(1) of the Act also validated decisions affected by certain process errors, but R v Smithestablished that there were wider grounds for invalidity: above n 3, at [24]. It is not suggested thats 13(1) validates the decision in this case.The Court's inherent jurisdiction to remedy an injustice applies[23] Following enactment of the 2001 Act the Crown sought to vacate a fixturewhich had been set in this Court to determine what must be done with cases, otherthan the 12 actually decided in Taito, that had been disposed of under the ex parteprocess.8 The Crown contended that other appellants must bring an application underthe 2001 Act. Under that legislation it was necessary to show both that there had beena failure of process and that there was an arguable case that a miscarriage of justicehad occurred.9 The applicant in that case, Mr Smith, resisted.[24] The Court held that it had inherent jurisdiction to revisit decisions made underthe ex parte process:[36] The Court has inherent power to revisit its decisions in exceptionalcircumstances when required by the interests of justice. Such power is part ofthe implied powers necessary for the Court to "maintain its character as a courtof justice". Recourse to the power to reopen must not undermine the generalprinciple of finality. It is available only where a substantial miscarriage ofjustice would result if fundamental error in procedure is not corrected andwhere there is no alternative effective remedy reasonably available.Without such response, public confidence in the administration of justicewould be undermined.[25] The Crown invited the Court in Smith to decline to exercise the jurisdiction onthe ground that it is reserved for exceptional cases in which there is no alternativeremedy. It contended that the 2001 Act provided such a remedy. The Court held thatthe ex parte process breached minimum standards of criminal procedure and minimumrequirements of natural justice and amounted on itself to a substantial miscarriage ofjustice. A procedure under which the applicant must point to an arguable miscarriageof justice in the outcome was not an adequate response. Accordingly, the inherentjurisdiction was available.[26] It appears, unsurprisingly, that following Smith the procedure in the 2001 Acthas been little used, and not at all in recent years. Ms Brook argued that the applicantsought have recourse to it here. We note that the 2001 Act provides for a closing date8 R v Smith, above n 3.9 Section 14(3).for applications, to be set by Order in Council, but through what may have beenan administrative oversight in the Ministry of Justice that has not been done.[27] We do not consider that the present cases are materially distinguishable fromTaito, and we are satisfied, following Smith, that the inherent jurisdiction is availableand ought to be exercised. It is true that these are applications for leave, not appealsas of right, but that is a distinction without a difference for jurisdictional purposes.The merits of the applicants' appeals would have been examined at the oral leavehearings that they were denied through the ex parte process.[28] Nor do we accept that the fact that the applicants required extensions of timeis a material consideration. If their appeals appear to have substantive merit and delaycan be explained it is likely that they will be granted leave. For its part, the Crownwill have the opportunity to resist both extension of time and leave to appeal.Decision[29] The applications for leave to appeal were correctly accepted for filing.The Registrar is to take steps to set them down for hearing.Solicitors:Public Defence Service, Auckland for Applicant WaaCrown Law Office, Wellington for Respondent